Law360, New York (February 7, 2011) — A federal judge overseeing multidistrict litigation against C.R. Bard Inc. has denied the medical equipment manufacturer’s bid for a new trial, ruling that a jury was reasonable in awarding $1.5 million to a couple injured by allegedly defective hernia patches.
Judge Mary M. Lisi ruled Friday in the U.S. District Court for the District of Rhode Island that the jury’s verdict against Bard and subsidiary Davol Inc., the manufacturer of the disputed patches, was a fair one considering the evidence and testimony given at trial.
The August trial — the second of four bellwether trials in the multidistrict litigation — resulted in a $1.5 million verdict for Christopher and Laure Thorpe, who had claimed that Bard’s Composix Kugel surgical mesh patches were unreasonably designed and carried inadequate warning of risk.
Judge Lisi also shot down Davol’s motion to exclude the Thorpes’ medical expert testimony, saying the two doctors who testified had considerable expertise, experience and education; gave conclusions that were sufficiently grounded in scientific knowledge; and “were undoubtedly helpful in assisting the jury to understand or determine the facts at issue.”
In addition, the judge on Friday denied Davol’s motion for judgment as a matter of law with respect to the inadequate design claim, saying the evidence offered at the trial could lead a reasonable jury to find that the manufacturer acted unreasonably in designing the hernia patch and failed to adopt a safer alternative design.
The judge did grant Davol’s motion on the plaintiffs’ claim that the company did not adequately warn consumers about problems with the patch. Even assuming Davol knew or should have known that the patches were susceptible to failure when they were first marketed, the Thorpes did not sufficiently show this was the proximate cause of their injury, according to the ruling.
“We actually felt pretty confident, because these issues were raised during the trial, and the court similarly ruled this way,” Thorpe’s attorney Donald Migliori said. “We’re relieved that this was the outcome. It’s time to get this over with.”
The judge’s reasoning in the ruling could affect the other cases in the MDL, Migliori said. One of the defendants’ main arguments was that there was no peer-reviewed literature to support the link between the faulty hernia patch and Thorpe’s injury, he said. But the judge ruled that the science supports the plaintiffs’ allegations.
The Thorpes initially filed suit in November 2008, claiming Christopher Thorpe developed an abscess and fistula as a result of a defective memory ring after the patch was used to repair his ventral hernia.
The defect, which Bard and Davol knew about but concealed, led to significant medical expenses along with pain and suffering, the Thorpes alleged.
The verdict in the Thorpes’ case came about four months after a jury found for the defendants in the first bellwether case in the MDL. In that suit, Whitfield v. Davol Inc. et al., the jury decided Bard’s patches were neither defectively designed nor inadequately labeled.
Cranston, R.I.-based Davol manufactures products used in surgery. The Kugel patches, used to fix abdominal hernias, contain memory recoil rings that allow them to be folded during insertion and then spring open and lay flat once in their desired location.
Attorneys for both parties did not immediately respond to requests for comment Monday.
The matter was consolidated within the MDL in December 2008.
The plaintiffs are represented by Motley Rice LLC, Wexler Wallace LLP and Cory Watson Crowder & DeGaris PC.
Bard and Davol are represented by Reed Smith LLP and Morrison Mahoney LLP.
The MDL is In re: Kugel Mesh Hernia Patch Products Liability Litigation, case number 07-md-01842, in the U.S. District Court for the District of Rhode Island.
Thorpe’s case is Thorpe et al. v. Davol Inc. et al., case number 1:08-cv-00463, in the U.S. District Court for the District of Rhode Island.
–Additional reporting by Nick Brown and Jocelyn Allison. Editing by Greg Ryan.
Source: Law 360